Sambucco v Registrar of Births, Deaths and Marriages (Costs)
[2021] VSC 193
•21 April 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS
S ECI 2020 02908
| ROBERT SAMBUCCO | Plaintiff |
| v | |
| REGISTRAR OF BIRTHS, DEATHS AND MARRIAGES VICTORIA and MARA SAMBUCCO | First Defendant Second Defendant |
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JUDGE: | QUIGLEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 21 April 2021 |
CASE MAY BE CITED AS: | Sambucco v Registrar of Births, Deaths and Marriages & Anor (Costs) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 193 |
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PRACTICE AND PROCEDURE – Costs – Whether costs should be awarded on an indemnity or standard basis – Allegation of proceedings commenced for ulterior purpose rejected – Allegation of proceedings in wilful disregard of the law rejected – No special circumstances justifying award of costs on an indemnity basis – Whether the defendant’s conduct justified a percentage discount of costs to be awarded – Rees v Rees (No 2) [2016] VSC 579 applied – Plaintiff to pay costs on a standard basis – Supreme Court (General Civil Procedure) Rules2015 (Vic) r 63.28 – Supreme Court Act 1986 (Vic) s 24(1).
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HER HONOUR:
Introduction
On 23 December 2020, Orders were made by the Court dismissing the plaintiff’s application for an extension of time to file his Originating Motion dated 10 July 2020.[1] The Court directed the parties to make written submissions in relation to costs by 4 February 2021.
[1]Order of Quigley J in Sambucco v Registrar of Births, Deaths and Marriages & Anor (Supreme Court of Victoria, S ECI 2020 02908, 23 December 2020).
Additional directions were made allowing for submissions in reply.[2]
[2]Order of Quigley J in Sambucco v Registrar of Births, Deaths and Marriages & Anor (Supreme Court of Victoria, S ECI 2020 02908, 5 February 2021).
The submissions received raised some additional matters, in particular, the need to discharge earlier Orders made by Justice Macmillan,[3] which restrained the dispersal of the estate.
[3]Order of McMillan J in Sambucco v Registrar of Births, Deaths and Marriages & Anor (Supreme Court of Victoria, S ECI 2020 02908, 4 August 2020).
The respective submissions have been considered and for the reasons that follow the Court will order that the second defendant’s costs of the proceeding, including the costs of the application for extension of time and any reserved costs, be paid by the plaintiff on a standard basis. As no application for costs was made by the first defendant, no order will be made in respect of the first defendant’s costs.
Additionally, orders will be made discharging the consent Orders made by Justice McMillan on 4th August 2020, which restrained the second defendant’s administration of or dealing with the assets of the estate of Marco Sambucco. These orders are sought by the second defendant and are required as a consequence of the Court’s judgment. The plaintiff and second defendant, who are the parties affected by these consent orders agree that the discharge of the restraint is appropriate.[4]
[4]Email correspondence received from the plaintiff dated 31 March 2021, and from the second defendant dated 24 March 2021.
Second Defendant’s application for costs on an indemnity basis
The second defendant sought costs of the proceeding including reserved costs and the costs of the application for extension of time against the plaintiff on an indemnity basis. Reference was made to Rule 63.28 of the Supreme Court (General Civil Procedure) Rules2015 (Vic).[5]
[5]Mara Sambucco, ‘Second Defendant’s Submission on Costs and Other Final Orders’, filed in Sambucco v Registrar of Births, Deaths and Marriages & Anor, S ECI 2020 02908, 19 January 2021 [26].
The second defendant relied on two key arguments. Firstly, that the plaintiff commenced and continued the proceeding for an ulterior purpose. That purpose was said to be that seeking to set aside the registration and certificate of marriage was not sufficient to prove that the marriage was invalid. In fact, the plaintiff would still have been required to commence proceedings in the Probate jurisdiction to set aside the grant of letters of administration. As such, it was argued that the proceeding was futile and the incorrect vehicle for resolving the plaintiff’s grievance, which was whether there was at law a marriage for the purposes of s 13 of the Wills Act 1997 (Vic).
The second argument was said to be that the proceeding was commenced and continued in wilful disregard of known facts and clearly established law. The plaintiff commenced the proceeding after the expiration of the time limit in circumstances where assuming he was properly advised, he ought to have known he had no reasonable prospect of establishing any special circumstances to justify an extension of time.
For these reasons, the second defendant argued that there are special circumstances which justify the making of an order that the plaintiff pay her costs of the proceeding including the application for extension of time on an indemnity basis.
The Plaintiff’s response
The plaintiff concedes that the cost of the proceeding should follow the event. However, he resists the second defendant’s submission that costs should be ordered on an indemnity basis. He argues there is nothing to cause a departure from an order in favour of the second defendant on a standard basis. Further, he argued that the Court has a discretion to disallow costs of any work which is not necessary or is done without due care.[6]
[6]Robert Sambucco, ‘Plaintiff’s Submissions Concerning Costs’, filed in Sambucco v Registrar of Births, Deaths and Marriages & Anor, S ECI 2020 02908, 4 February 2021 [3].
The plaintiff submits that an adjustment may be made discounting the costs awarded by an appropriate overall percentage and submits that 15% would be an appropriate discount taking into account the following matters:
a)The costs associated with the second defendant’s submissions in opposition to transfer of the matter to the Probate Division.[7] The plaintiff did not make an application to transfer the proceeding and claims the second defendant’s submissions made in apparent anticipation of an application that never occurred were premature and unnecessary.
b)The costs associated with the second defendant’s submissions in relation to a separate trial regarding the issue of standing.[8] It was argued that the plaintiff should not be required to bear any costs in connection with the attempts at formulating a separate question. Instead, the plaintiff should have his costs of his response to the failed attempt for a separate trial.
c)The submissions dated 6 October 2020 filed on the eve of the hearing were not in accordance with the Court timetable, were a duplication of other submissions or otherwise were submissions not upheld by the Court. These submissions, which were in four parts, dealt with the separate trial issue, contained a part entitled ’correction of error’, included a response to reply submissions and included substantive submissions to part of the plaintiff’s original submissions. These submissions ought not be compensated by costs.
[7]Mara Sambucco, ‘Outline of Submission on Behalf of the Second Defendant: In Opposition to Transfer of the Case to Probate Division’, filed in Sambucco v Registrar of Births, Deaths and Marriages & Anor, S ECI 2020 02908, 1 October 2020.
[8]Mara Sambucco, ‘Outline of Submission on Behalf of the Second Defendant: Separate Trial in Relation to the Issue of Standing’, filed in Sambucco v Registrar of Births, Deaths and Marriages & Anor, S ECI 2020 02908, 1 October 2020.
The plaintiff also complained that the second defendant conducted the litigation in an irregular, piecemeal and disorganised way and that in addition to the matters set out above this conduct should lead the Court to refuse costs not only on an indemnity basis but to further reduce costs awarded on a standard basis.
The first defendant
The first defendant made no claim for costs nor provided any submission in relation to costs.[9]
[9]The first defendant’s solicitor by email to the Court dated 2 February 2020 stated that the first defendant did not seeks its costs.
General Principles applicable to award of costs
The Court has a general discretion to award costs.[10]
[10]Supreme Court Act 1986 (Vic) s 24(1).
The usual order is that costs follow the event and costs will be awarded on a standard basis. It is necessary to show facts or circumstances out of the ordinary in order to justify costs being awarded on a more generous basis.
Equally, costs may be reduced where costs incurred were not necessary or done without due care. Whether such costs are disallowed is a matter for the Court and will depend on the circumstances of each case.
The threshold for departing from the usual order and in which indemnity costs may be awarded is high and the authorities show that the Court should be cautious in reaching the required degree of satisfaction.[11]
[11]See generally Colgate–Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; Almond Investors Ltd v Emanouel [2012] VSC 479 [14] (Sifris J).
A useful statement of the general principles is found in Rees v Rees (No 2),[12] where McMillan J stated:
[12][2016] VSC 579.
5.The jurisdiction of the Court as to costs is conferred by s 24(1) of the Supreme Court Act 1986. This general discretion must be exercised in accordance with Order 63 of the Supreme Court (General Civil Procedure) Rules 2015. The ‘usual order as to costs’ is that a successful party in litigation is entitled to an award of costs in its favour. The unsuccessful party bears the liability for the costs of the unsuccessful litigation.
6.The prima facie position in respect of costs in litigation is for standard costs to be ordered by the court, with the court having the discretion to award costs other than on the standard basis. A special costs order will only be made where the proceeding exhibits a special or unusual feature or special circumstances. Each proceeding must be considered on its own facts to ascertain whether those facts support the making of a special order for costs.
7.The authorities concerning the principles to be applied when a court, in the proper exercise of its discretion, may depart from the making the usual order for costs on a standard basis are well known and conveniently set out in cases such as Colgate-Palmolive Co v Cussons Pty Ltd, Ugly Tribe Co Pty Ltd v Sikola, and Sunland Waterfront (BVI) Ltd v Prudential Investments Pty Ltd (No 3). The categories of circumstances that warrant a special costs order are not closed but examples of circumstances where a special costs order has been made include:
(a)the making of an allegation, known to be false, that the opposite party is guilty of fraud;
(b)the making of an irrelevant allegation of fraud;
(c)conduct which causes loss of time to the court and to other parties;
(d)the commencement or continuation of proceedings for an ulterior motive;
(e)conduct which amounts to a contempt of court;
(f)the commencement or continuation of proceedings in wilful disregard of known facts or clearly established law; and
(g)the failure until after the commencement of the trial, and without explanation, to discover documents the timely discovery of which would have considerably shortened, and very possibly avoided, the trial.
8.Although the fact of a proceeding being commenced or continued in wilful disregard of known facts refers to the commencement or continuation of proceedings, indemnity costs may be ordered generally in ‘… a case involving some relevant delinquency on the part of the unsuccessful party’. Oshlack v Richmond River Council (1998) 193 CLR 72, 89 [44] (Gaudron and Gummow JJ).
…
10.A contravention of an overarching obligation under the Civil Procedure Act 2010 (‘the CP Act’) may also affect a court’s exercise of discretion in relation to the costs of a proceeding. A contravention of an overarching obligation under the CP Act activates s 28 which provides, without limiting the Court’s inherent discretion as to the costs, the Court may take any contravention of the overarching obligations into account in exercising its powers.
(citations omitted)
Relevance of motivation in engaging in litigation
The plaintiff steadfastly resisted the submission that the plaintiff commenced and continued this proceeding for an ulterior purpose. It was suggested that this submission seems to amount to an abuse of process without saying so explicitly. The plaintiff asserts there is nothing ulterior about the purpose of the litigation which was to quash the twin determinations of the Registrar to issue the Marriage Certificate and register the marriage. The plaintiff did not contest that a motivating and key issue was losing his interest in his brother’s estate caused by the marriage. However, the plaintiff contended that this is not conduct which places the second defendant in a more favourable position in relation to costs. The plaintiff argued the litigation was the appropriate forum for assertion of his rights. Further, whilst the Court did not accept that the plaintiff’s rights were affected by the Registrar’s decisions, the plaintiff argued that his failure on that point does not point to illegitimate motivation underlying his attempt to bring the litigation.
In any litigation there is no doubt an objective to put oneself in the best position one can in respect of one’s rights. This does not automatically point to an ulterior motive. It was open to the plaintiff to challenge the registration of the marriage, notwithstanding that this appears to be an uncommon route to have selected. Ultimately, he was unsuccessful in establishing the grounds for an extension of time. In part this was based on the strength of the claim. Whilst it might be considered to have caused personal affront to have the relationship challenged by the litigation that is not a consideration in terms of the facts relating to an award of costs on an indemnity basis. No doubt much litigation in the Probate division involving a dispute over an inheritance will cause personal hurt but that is not equivalent to bringing litigation for an improper purpose which might warrant a higher award of costs.
Wilful disregard of the law
The plaintiff opposes the second defendant’s submission that the proceeding was commenced and continued in wilful disregard of known facts and clearly established law.
I reject this submission of the second defendant. As previously noted, the particular form of the proceeding was somewhat unique and insofar as an extension of time was required, it did require judicial determination. I do not accept that the claim had absolutely no basis or chance of success. That said, the court did find in favour of the second defendant, and the Registrar of Births, Deaths and Marriages’ decision stands.
The fact that a plaintiff is unsuccessful based wholly or in part that his evidence was not accepted was argued to be insufficient to justify an award of costs on an indemnity basis.
In Ingot Capital Investment Pty td v Macquarie Equity Capital Markets Limited (No 7) the Court stated:
It is frequently the case in litigation that a witness – including a party – is not believed. That is an incident of the adversary system. Party and party costs are another incident of the adversary system, and will remain so until the legislature takes a different view ... If indemnity costs were available as a matter of course whenever a party was disbelieved, there would be a shift de facto in the “normal” basis of assessment of costs.[13]
[13](2008) 65 ACSR 324 [37] (McDougall J).
The proper consequence is an award of costs, but on a standard basis.
Reduction of costs rejected
I also reject the several submissions made on behalf of the plaintiff that there was justification for a reduction of costs to be awarded to the second defendant. Firstly, I do not accept that there ought to be a reduction in the second defendant’s award of costs in respect of the submissions to transfer the case to the Probate List. It was clearly a litigation option to do so, although it was not ultimately pursued. Litigation tactics and decisions to pursue a certain course, as long as they are within the overarching objectives of the Civil Procedure Act 2010 (Vic) should not be unreasonably penalised. I am not persuaded that there is good reason to depart from the usual costs order in this respect.
Secondly, in respect of the separate trial submission, I consider that this step was reasonably taken. Whilst the Court did not accede to the second defendant’s request, I do not consider the submissions were unreasonable. Rather, it was an option but not an option that the Court preferred.
Thirdly, I reject the claim that the outline of further submissions dated 2 October 2020 ought not be compensated as it was not filed in accordance with the timetable and dealt with additional or repetitive matters. In my view, the work was not unreasonable in all the circumstances. I am satisfied that all of the material filed and relied upon by the parties was useful to a greater or lesser extent in coming to the overall decision. That some of the components of submissions were repetitive or a variation of earlier submissions was a small part of the overall material. Insofar as the submissions contained correction of an error or errors I note that it is an obligation on litigants to correct an error and I am not prepared to make an adverse finding in respect of costs to be paid.
Fourthly, regarding the response submissions to the plaintiff’s reply submissions, I am not prepared to discount the costs in this regard. The Court found these submissions useful notwithstanding that they did not strictly comply with the timetable.
Finally, I also reject the allegation that the response submissions,[14] which in part responded to the substantive position taken by the plaintiff in his first submission, demonstrated the disorganised and disintegrated way in which the second defendant presented her case thus justifying a discount in the costs to be awarded.
[14]See Robert Sambucco, ‘Plaintiff’s Submissions Concerning Costs’, filed in Sambucco v Registrar of Births, Deaths and Marriages & Anor, S ECI 2020 02908, 4 February 2021 [6], where the plaintiff made the same allegation, which is also rejected for the same reasons set out above.
I acknowledge that not all representation before the Court is of an exemplary standard. However, the question is whether the standard falls into the category of being so poor that there ought to be a cost penalty applied. I am not satisfied that those circumstances exist here. There is little doubt that the quality of advocacy before the Court is variable and that the profession must always seek to attain the highest standards of competency and professionalism. There is often a clear disparity between expertise and experience but in the circumstances the representation and presentation of the material on behalf of the plaintiff does not fall within the category in my view that should penalise the second defendant in the manner sought by the plaintiff.
Injunctive orders made by McMillan J
In addition to the decision on costs the parties have also asked the Court to vary the orders made by McMillan J.
On 30 July 2020, Orders were made on the plaintiff’s summons by McMillan J, by consent of the plaintiff and the second defendant, which imposed restraints on the second defendant in her dealings with the estate of Marco Sambucco.[15] Those restraining orders were then repeated or renewed on 4 August 2020 by McMillan J in Orders made on that day in the following terms.
1.Until further order, the second defendant be restrained from dealing with, or taking any steps to cause any person to deal with, any asset which was part of the estate of Mark Sambucco at the date of his death without express written consent of the plaintiff following the giving of three clear business days’ notice, save for the payment of bona fide, usual, and ordinary expenses incurred in the normal course of the administration.
2.Until further order, the second defendant be restrained from exercising, or taking any steps to cause any person to exercise, powers or rights in connection with her role as administrator of the estate of Mark Sambucco without the express written consent of the plaintiff, including but not limited to:
(a)any shareholding formerly held by Mark Sambucco in any corporate entity transferred to her or others pursuant to her role as administrator of his estate; or
(b)any directorships formerly held by Mark Sambucco to which the second defendant as administrator of his estate has appointed herself or others.
[15]Order of McMillan J in Sambucco v Registrar of Births, Deaths and Marriages & Anor (Supreme Court of Victoria, S ECI 2020 02908, 20 July 2020).
Orders to be made
1.The proceeding be dismissed.
2.The injunctions set out in paragraphs 1 and 2 of the Orders of McMillan J made on 4 August 2020, be dissolved forthwith.
3.The plaintiff pay the second defendant’s costs of the proceeding, including the costs of the application for an extension of time made pursuant to r 56.02(3) of the Supreme Court (General Civil Procedure) Rules 2015, and the costs of the summons for injunctions dated 20 July 2020, on a standard basis.
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